A federal district court judge in Manhattan today granted the government’s motion to dismiss a lawsuit that sought to challenge the constitutionality of cannabis’ prohibited status under federal law.

[2/27/18 update: Plaintiffs have stated their intent to appeal the court’s ruling.]

The 98-page complaint, filed in July 2017 by a legal team that includes New York attorney Michael Hiller, NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland, contended that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argued that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.” Lawyers for the Justice Department argued for a dismissal of the suit, arguing: “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

Presiding Judge Alvin K. Hellerstein sided with the federal government, opining in a 20-page ruling: “No such fundamental right (to possess or use cannabis) exists. Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana.” The judge further ruled that plaintiffs had not yet exhausted all of the potential administrative remedies available to them — such as filing an administrative petition to reschedule cannabis with the US Drug Enforcement Administration — and therefore, it was inappropriate for the court to intervene. “There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind,” he opined. “Judicial economy is not served through a collateral proceeding of this kind that seeks to undercut the regulatory machinery on the Executive Branch and the process of judicial review in the Court of Appeals.”

Judge Hellerstein also rejected plaintiffs’ claim that the federal law is unconstitutional because “it was passed with racial animus.” He held that plaintiffs lacked the standing to argue such a claim because they “have failed to demonstrate that a favorable decision is likely to redress plaintiffs’ alleged injuries,” such as a dismissal of their past criminal convictions.

With regard to the question of whether the plaintiffs legitimately benefited from cannabis as a medicinal agent, the judge argued that the merits of this claim was beyond the scope of the court. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives,” he wrote. “I highlight plaintiffs’ experience to emphasize that this decision should not be understood as a factual finding that marijuana lacks any medical use in the United States, for the authority to make that determination is vested in the administrative process.” He added, “Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule I.”

Legal counsel for the plaintiffs have yet to publicly announce whether or not they intend to appeal Judge Hellerstein’s ruling.

A judge for the Federal District Court in Sacramento considered similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them — ruling that plaintiffs failed to show that Congress acted irrationally when classifying cannabis as a schedule I controlled substance. “At some point in time, a court may decide this status to be unconstitutional,” the judge determined. “But this is not the court and not the time.”

It must be acknowledged that the courts will never reschedule marijuana as it is currently defined, nor should they. The remedy is to literally reform the definition of marijuana to make it uphold the Constitution. We must contact our members of Congress to enact this careful reform that simply de-schedules the cannabis plant while preserving the existing prohibitions on marijuana use:

The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L. which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company.

30 years ago the DEA’s Chief Administrative Law Judge incorrectly construed the meaning of the existing definition when he wrote, “Throughout this opinion the term ‘marijuana’ refers to ‘the marijuana plant, considered as a whole’.”, that the DEA continues to abide.

In this trope (i.e. use of words in other than their literal sense), the judge used the rhetorical device of synecdoche to claim that “marijuana” means “the marijuana plant”, and the rhetorical device of metonymy to substitute “the marijuana plant” for “the plant Cannabis sativa L.” found in the federal definition of marijuana. The judge’s trope, ensconced in a footnote, is false because it strategically misconstrues the meaning of the equivocal definition of the term “marijuana” to be “the plant Cannabis sativa L.” (i.e. all varieties of cannabis plant), which is not the real meaning of that legislated term. The reformed definition describes its real meaning.

When Congress enacts this reform, it will override the DEA judge’s misconstruction, so that the reformed definition can be subsequently rescheduled by law.

Discussions about “marijuana” tend to be perceived to imply smoking the “marijuana plant” to access the “marijuana drug”, to the detriment of the other valuable uses of the plant. The term has served to adumbrate (i.e. prioritize a particular mental perception) the act of smoking the versatile cannabis plant, which some people like to smoke, to the detriment of the other valuable uses of the plant.

De-scheduling the cannabis plant by defining the term “marijuana” to expose its adumbrated meaning, simply removes the scheme of prohibiting the valuable plant by assigning a racist spelling to it, and thereby restores the Ninth Amendment rights which are “retained by the people” to grow and use the versatile cannabis plant.

Subsequently rescheduling the reformed definition of the term “marijuana” allows for some federal restrictions on who can smoke it, and where it can be smoked. The lower the schedule the better, but de-scheduling the term restores the Tenth Amendment rights that are “reserved to the States respectively, or to the people”, to control who, where, and how the cannabis plant is used.

Preserving the corporate prohibitions on growing and selling the cannabis plant will preclude them from enticing children to smoke the plant, while permitting them to make medical and industrial products from it. In a subtle way, it also refutes the judicially imposed creed that “corporations are people”.

Each of these “steps” toward sanity are in the hands of Congress. These step-wise reforms may be more amenable to the stonewalling marijuana hardliners there, if more people will tell them.

You wrote:
“Preserving the corporate prohibitions on growing and selling the cannabis plant will preclude them from enticing children to smoke the plant, while permitting them to make medical and industrial products from it.”

Thanks for revealing you are more concerned with patented profit than the liberty of Americans.

Yer a cheap sell out Yearbait. Your fancy vocabulary is fooling no one here. Schedule 2 is corporate quasi prohibition. You should do some time for smoking weed then come back and tell us what definition of marijuana you enjoy.

@ yearofaction,
By all means, continue your Quixotic quest; I see nothing will deter you, in any case. But I don’t think our enemies are going to fall for that trick. A rose by any other name still smells like Skunk! (Skunkweed. Get it?) But you never know, it’s a crazy world! If they do fall for it, I will tip my hat to you. Meantime…

Frankly, I am holding out for a different approach: Vote Democratic! Get on the big blue wave!

@dain bramage
Back in the day, in 1791 when the Bill of Rights was ratified, it would have been quixotic to prohbit cannabis from the people, seeing as how the Ninth and Tenth Amendments limited the governments ability to remove our liberty, but then time passed, and racism, ignorance, corporate greed, and political will took it from us. It’s time to reclaim it.

Marijuana is a controlled substance derived from the cannabis plant. The control of that substance, and its valuable precursor plant as well, should be returned to the people to provide to the corporations for a market-based price according to supply-side theory. That is the American way as long as the Constitution is the supreme law of the land. It’s time to insist it.

@dain bramage
Back in the day, in 1791 when the Bill of Rights was ratified, it would have been quixotic to prohibit cannabis from the people, seeing as how the Ninth and Tenth Amendments limited the governments ability to remove our liberty, but then time passed, and racism, ignorance, corporate greed, and political will took it from us. It’s time to reclaim it.

Marijuana is a controlled substance derived from the cannabis plant. The control of that substance, and its valuable precursor plant as well, should be returned to the people to provide to the corporations for a market-based price according to supply-side theory. That is the American way as long as the Constitution is the supreme law of the land. It’s time to insist it.

@dain bramage
Speaking of quixotic, judge Hellerstein said, “Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug. As of 2005, the D.C. Circuit Court of Appeals had reviewed petitions to reschedule marijuana on five separate occasions over the course of 30 years, and upheld the DEA’s determination in each instance.” It should be pretty clear that the existing definition will not be rescheduled. You can almost hear the judge’s sotto voce query, “Whatareyoustupid?”

Now, seeking to reform the definition before rescheduling/de-scheduling it, does not seem so quixotic after all.

Did this ruling just establish that you have no inherent right to use plants in their natural form??? Is that really how our founding fathers would have seen things?? They rebelled against the king to have freedom which didnt include the right to grow or not grow and use or not use whatever plants they wanted to??? Really?

Essentially, Matt, that is what the CSAct has been unconstitutionally doing since 1970 and the Marijuana Stamp Act since 1937. We have to hold Congress accountable for taking our rights away. This season that means voting Democratic… vet your reps during the primaries!

I like to think I’ve always caught your sarcasm Dain, but I answer for the people I fear cannot grasp the level and context of our written conversation. Always better to paranthesize sarcasm, like asking if Trump thinks killing drug dealers will make his balls grow back again. (Sarcasm… the hubris and finasteride permanently shrunk them).

“Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule 1.” But, Schedule 1 means the opposite: The drug or other substance has no currently accepted medical treatment use in the U.S. Hence, true equals false in Judge Alvin K. Hellerstein’s courthouse. The judge says “Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana.” Yet, “In all criminal prosecutions, the accused shall enjoy the right …to have compulsory process for obtaining witnesses in his favor” (Amendment 6). If a judge says it’s not irrational for true to equal false then there is in fact not a compulsory process, which is unconstitutional.

Unfortunatelt Todd, NORML had a DEA Judge argree that marijuana was one of the “safest” substances known to mankind nearly 40 years ago and yet here we are.

The big difference here is that this Judge is trying to hide behind Congress when thirty state legislatures have legalized medical or responsible adult matijuana markets reducing harm and protecting life as we write… which is clear Constitutional and legislative evidence of irrepreable harm and damages for the plaintiffs that the Judge unconstitutionally denies. But Constitutional decisions are better made in Apellate courts… or perhaps even the Supreme Court, by which time we will have more legalized states, and a Democratic Congress.

Bout time for Kim Jong Un to deliver a message about the size of the Grand Canyon here in America to adjust the scales of justice in this country since the scales of justice have become out of adjustment and flawed. A correction would be necessary.